Citation Nr: 9827158
Decision Date: 09/10/98 Archive Date: 09/17/98
DOCKET NO. 98-12 059 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to service connection for a right great toes
disorder.
ATTORNEY FOR THE BOARD
L.J. Wells-Green, Counsel
INTRODUCTION
The veteran served on active duty from July 1943 to December
1945. This matter comes to the Board of Veterans' Appeals
(Board) on appeal from a March 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky.
CONTENTIONS OF APPELLANT ON APPEAL
In essence, it is maintained by and on behalf of the
appellant that he developed a disorder of the right great toe
during service. While he was never treated for the toe in
service, he alleges that he treated the toe thereafter, but
that the toe was amputated in 1983.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim for
service connection for a right great toe disorder is well-
grounded.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been obtained.
2. Service medical records are silent for pathology of the
right great toe.
3. The records do not support a finding the 1983 amputation
the right great toe is the result of disability incurred in
service.
CONCLUSION OF LAW
The claim for service connection for a right great toe
disorder is not well-grounded. 38 U.S.C.A. § 5107 (West
1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The veteran's service medical records make absolutely no
reference to the right great toe.
In October 1997, the veteran's informal claim was opened.
Accompanying the claim was an October 1983 operative report
from the Jewish Hospital of Cincinnati, prepared by E. Stern,
M.D., surgeon, that described a right ray amputation of the
great toe. It was indicated that the veteran had a 40-year
history of chronic osteomyelitis, with fungus formation of
the toe.
In response, the RO requested that the veteran complete a
formal claim and provided him with VA Form 21-527 (Veteran's
Application for Compensation or Pension). The veteran
returned the form in November 1997. It was indicated on the
form that he had been treated in October 1983 by Dr. Stern
for the toe. Upon review of the information, the RO, in
March 1998, denied service connection for the right great
toe. The RO informed the veteran that the claim was not
well-grounded and provided him with information regarding the
criteria necessary for a well-grounded claim. The veteran
was encouraged to submit evidence to support his claim.
In a letter received in April 1998, the veteran responded, in
essence, that over the years, doctors had been unable to
identify the pathogen affecting the toe, resulting in the
1983 amputation. He provided no additional information.
Analysis
In the case of Epps v. Gober, the Federal Circuit adopted, as
one that properly expresses the meaning of the statute, the
Court of Veterans Appeals’ definition of a “well grounded”
claim:
[A] plausible claim, one which is meritorious on
its own or capable of substantiation. Such a claim
need not be conclusive but only possible to satisfy
the initial burden of § 5107(a). For a claim to be
well grounded, there must be (1) a medical
diagnosis of a current disability; (2) medical, or
in certain circumstances, lay evidence of in[-
]service occurrence or aggravation of a disease or
injury; and (3) medical evidence of a nexus between
an in-service [disease or injury] and the current
disability. Where the determinative issue involves
medical causation, competent medical evidence to
the effect that the claim is plausible is required.
Consequently, “such a claimant” refers to the claimant who
has first met his or her burden of submitting a “well
grounded” claim. Thus, under section 5107(a), the VA has a
duty to assist only those claimants who have established
“well grounded (i.e., plausible) claims. Epps v. Gober, 126
F.3d 1464 (Fed. Cir 1997).
In the present case, service medical records make no mention
of a right great toe disorder. While there is presently a
right great toe disorder (amputation), the veteran has
presented no evidence other than his own statement, that
there exists a relationship between his present right great
toe disorder, and military service. While the appellant is
competent to provide evidence of visible symptoms, he is not
competent to provide evidence that requires medical
knowledge. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992).
In conclusion, the veteran has not presented evidence
sufficient to make this claim well-grounded. The claim must
be denied.
The Board views its discussion as sufficient to inform the
veteran of the elements necessary to complete his application
for the claim of service connection for a right great toe
disorder. Robinette, 8 Vet.App. at 77-78. Essentially, the
veteran must submit medical evidence which shows a
relationship between the present right great toe disorder and
service.
ORDER
Entitlement to service connection for a right great toe
disorder is denied.
RENÉE M. PELLETIER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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